Leandro Andrade v. Attorney General of the State of California Ernest B. Roe, Warden

Opinion by Judge PAEZ; Concurring and Dissenting Opinion by Judge SNEED

Appellant Leandro Andrade was convicted in the Superior Court of California of two counts of petty theft for shoplifting a total of nine videotapes from two K-Mart stores. California generally treats such offenses as misdemeanors, each punishable by up to six months in county jail and up to a $1,000 fíne. However, because An-drade had been convicted of several prior offenses — all non-violent — his petty thefts were first enhanced to felonies under California Penal Code § 666, and then enhanced again to third and fourth strikes under California’s Three Strikes and You’re Out Law, California Penal Code §§ 667 and 1170.12 (“the Three Strikes law”). As a result, Andrade, a non-violent recidivist who twice shoplifted merchandise worth a total of $153.54, received a life sentence in prison with no possibility of parole for 50 years.

In this appeal from the denial of his habeas petition under 28 U.S.C. § 2254 , Andrade argues that his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Four justices of the United States Supreme Court have agreed that the “unique quirk” in…

Concurring in part and Dissenting in part:

I agree with the Majority’s conclusion in Part II that Andrade filed the functional equivalent of a timely notice of appeal. I respectfully dissent, however, from the Majority’s conclusion in Parts IV and V that Andrade’s sentence violates the Eighth Amendment.

The sentence imposed in this case is not one of the “exceedingly rare” terms of imprisonment prohibited by the Eighth Amendment’s proscription against cruel and unusual punishment. Harmelin v. Michigan, 501 U.S. 957, 1001 , 111 S.Ct. 2680 , 115 L.Ed.2d 836 (1991) (quoting Solem v. Helm, 463 U.S. 277, 289-290 , 103 S.Ct. 3001 , 77 L.Ed.2d 637 (1983) (quoting Rummel v. Estelle, 445 U.S. 263, 272 , 100 S.Ct. 1133 , 63 L.Ed.2d 382 (1980) (“Outside *768 the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.”)))- Two consecutive sentences of 25 years to life-with parole eligibility only after the minimum 50 years-is obviously severe. Nevertheless, it is the sentence mandated by the citizens of California through the democratic initiative process and, additionally, legislated by their elected representatives.…

270 F.3d 743 (9th Cir. 2001) LEANDRO ANDRADE, PETITIONER-APPELLANT, v. ATTORNEY GENERAL OF THE STATE OF CALIFORNIA; ERNEST B. ROE, WARDEN, RESPONDENTS-APPELLEES. No. 99-55691 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 25, 2001 Filed November 2, 2001 [Copyrighted Material Omitted][Copyrighted Material Omitted] Erwin Chemerinsky, University of Southern California Law School, Los Angeles, California, for the petitioner-appellant. Robert M. Foster, Deputy Attorney General, and Douglas P. Danzig, Deputy Attorney General, San Diego, California, for the respondents-appellees. Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CV 98-6776-CAS (SH) Before: Schroeder, Chief Judge, and Sneed and Paez, Circuit Judges. Opinion by Judge Paez; Concurring and Dissenting Opinion by Judge Sneed PAEZ, Circuit Judge: Appellant Leandro Andrade was convicted in the Superior Court of California of two counts of petty theft for shoplifting a total of nine videotapes from two K-Mart stores. California generally treats such offenses as misdemeanors, each punishable by up to six…