Marshall

MEMORANDUM ***

Appellant Lewis Clifford Marshall was convicted of petty theft with a prior theft conviction (CalPenal Code § 666), and was sentenced to 25 years-to-life based on three prior “strike” convictions within the meaning of the Three Strikes law (§§ 667, subds.(b) — (i) and 1170.12). The Santa Clara Superior Court elected not to strike one of the previous convictions, the court of appeal affirmed this decision, and the California Supreme Court denied Marshall’s petition for review. Marshall then filed a petition for writ of habeas corpus 1 in the U.S. District Court for the Northern District of California, which was also denied. We affirm.

I.

First, Marshall argues that his sentence of 25 years-to-life constitutes cruel and unusual punishment in violation of the Eighth Amendment. Bound by Lockyer v. Andrade, 538 U.S. 63 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003), we hold that the court of appeal’s denial of this claim was neither contrary to nor an unreasonable application of the “gross disproportionality” principle.

II.

Second, Marshall contends that, at the time he committed his current offense, the Three Strikes law violated constitutional guarantees of due process…