Rucker

MEMORANDUM

California state prisoner David Rucker appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his “Three-Strikes” conviction and sentence for driving under the influence. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.

Rucker contends that his sentence of twenty-five years to life constitutes cruel and unusual punishment under the Eighth Amendment. Given the circumstances of the offense and of Rucker’s prior convictions, the state court did not unreasonably apply clearly established federal law. See 28 U.S.C. § 2254 (d)(1); Lockyer v. Andrade, 538 U.S. 63, 72-73 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003); see also Rios v. Garcia, 390 F.3d 1082, 1086 (9th Cir.2004) (upholding “Three Strikes” sentence of twenty-five years to life for felony petty theft where petitioner struggled with loss prevention officer and prior robbery strikes involved threat of violence).

Rucker also contends that appellate counsel was ineffective for refusing to raise the Eighth Amendment issue on direct appeal. The record reflects that counsel’s performance was not deficient, and that Rucker cannot demonstrate prejudice because the claim…