Thomas Kidwell v. Charles Ryan

MEMORANDUM

Arizona state prisoner Thomas Alec Kid-well appeals pro se from the district court’s judgment denying hi's 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.

Kidwell contends that his sentence is cruel and unusual in violation of the Eighth Amendment, and that counsel on state direct appeal was constitutionally ineffective for failing to raise this claim. The district court concluded that these claims were procedurally defaulted, but granted a certificate of appealability as to their substantive merits. Because we conclude that these claims do not entitle Kid-well to relief, we affirm on the merits. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir.2002). Although Kidwell’s sentence is harsh, we cannot say that it is “grossly disproportionate” to the crime. See Ewing v. California, 538 U.S. 11, 23 , 123 S.Ct. 1179 , 155 L.Ed.2d 108 (2003). Accordingly, appellate counsel was not ineffective for failing to raise an Eighth Amendment claim. See Moormann v. Ryan, 628 F.3d 1102, 1109-10 (9th Cir.2010).

We decline to consider Kidwell’s claim, raised for the first time on appeal, that trial counsel was constitutionally…