Wallace

MEMORANDUM **

Larry Eugene Wallace appeals pro se the district court’s denial of his 28 U.S.C. *619 § 2254 petition. Wallace challenges his California conviction and 50-years and 6-month to life sentence for one count each of grand theft, check forgery, possession of stolen property, possession of a forged driver’s license, posse&sion of a hypodermic needle or syringe, and petty theft with a prior. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.

Wallace contends that his sentence of 25-years-to-life for petty theft with a pri- or conviction, under California’s three-strikes law, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. 1 Reviewing the district court’s decision de novo, Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001), we cannot agree.

Because Wallace had at least two prior violent or serious felonies, he received a mandatory sentence of 25-years-to-life for his petty theft conviction. See CalPenal Code §§ 667(e)(2)(A). The State of California is entitled to punish recidivist more harshly than first-time offenders. See Ewing v. California, — U.S.-,-, 123 S.Ct. 1179, 1190 , 155 L.Ed.2d 108 (2003).…

specially concurring.

I concur only under compulsion of the Supreme Court’s decision in Andrade. I believe the sentence imposed on the petty theft count is both unconscionable and unconstitutional.

writing separately, dissenting in part.

In good conscience, I cannot vote to go along with the sentence imposed on the petty theft count.