Delano Tolden v. James Tilton

MEMORANDUM

Petitioner-Appellant Delano Tolden challenges the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . Tolden asserts that his sentence of twenty-five years to life constitutes cruel and unusual punishment due to his alleged mental retardation and the passive nature of his offense of failing to register as a sex offender. He also contends that the trial court’s jury instructions were constitutionally defective.

Federal law clearly establishes that mentally retarded persons may not be executed. See Atkins v. Virginia, 536 U.S. 304, 321 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002). However, there is no Supreme Court case supporting Tolden’s premise that a sentence of twenty-five years to life is cruel and unusual punishment for a mentally retarded person. With no Supreme Court authority to the contrary, the California Court of Appeal’s affirmance of the sentence was not an unreasonable application of Supreme Court law, and habe-as relief is not available. See Knowles v. Mirzayance, 556 U.S. 111 , 129 S.Ct. 1411, 1419 , 173 L.Ed.2d 251 (2009). In addition, there is sufficient evidence in the record to support the state court’s…