                                                                              FILED
                             NOT FOR PUBLICATION                               DEC 21 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



LONNIE LEE POSLOF, Sr.,                            No. 09-55686

               Petitioner - Appellant,             D.C. No. 5:06-cv-01418-AG-SH

  v.
                                                   MEMORANDUM *
JAMES A. YATES, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                    Andrew J. Guilford, District Judge, Presiding

                     Argued and Submitted November 17, 2011
                               Pasadena, California

Before: GOODWIN, W. FLETCHER, and RAWLINSON, Circuit Judges.

       Lonnie Lee Poslof, Sr., appeals the district court’s denial of his petition for a

writ of habeas corpus, arguing that his sentence of 27 years to life in state prison is

cruel and unusual punishment in violation of the Eighth Amendment to the U.S.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Constitution. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we

affirm.

      In 1992, Poslof pled guilty to two counts of lewd and lascivious acts with a

child in violation of California Penal Code § 288. He served a sentence in

California State prison and was released on parole in 1995.

      Because Poslof was convicted of a felony sex offense, California law

required that he register his residence with the local authorities. He was required

to register any additional residence, Former § 290(a)(1)(B), or any change of

residence within five working days, Former § 290(a)(1)(A). California law

declared willful violation of the registration requirement to be a felony punishable

by imprisonment “for 16 months, or two or three years.” Former § 290(g)(2).

      In August 2002, Poslof claimed to be residing part-time at two different

residences. He had registered only one of them. He had not registered the

residence that he had bought recently, and at which he was residing. The State

charged Poslof with willful violation of Section 290. Evidence presented at trial

indicated that he was no longer residing at his previous residence. A jury

convicted him of the charged offense. In a bifurcated trial, the trial court also

found true allegations that Poslof had two prior convictions for lewd and lascivious

acts upon a child, which qualified as serious or violent felonies. The trial court


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sentenced Poslof to 27 years to life in state prison under California’s Three Strikes

law, Cal. Penal Code § 667(e)(2)(A).

      Poslof argues that his third-strike felony of failing to register his second

address is a nonviolent, regulatory offense and that the harshness of the penalty is

grossly disproportionate to the gravity of that offense. Poslof relies on Gonzalez v.

Duncan, 551 F.3d 875 (9th Cir. 2008), and People v. Carmony, 127 Cal. App. 4th

1066 (2005). In those cases, the triggering offense was failing to update

registration within five working days of the offender’s birthday in violation of

Former Section 290(a)(1)(D) of the California Penal Code. Gonzalez, 551 F.3d at

885, 887; Carmony, 127 Cal. App. 4th at 1071-72. Both courts analyzed the

gravity of the triggering offense, noting that it was regulatory in nature and that

there was no danger to society because the offenders were living at their registered

addresses. Gonzalez, 551 F.3d at 885, 887; Carmony, 127 Cal. App. 4th at 1072-

73.

      Poslof, however, was convicted of the more serious offense of failing to

register a new residence. Gonzalez and Carmony are inapposite because Poslof

was residing at an unregistered location. See People v. Nichols, 176 Cal. App. 4th

428, 436 (2009); People v. Meeks, 123 Cal. App. 4th 695, 708 (2004).




                                           3
      The California Court of Appeal’s decision that Poslof’s sentence was not

grossly disproportionate to his offense was not contrary to, or an unreasonable

application of, clearly established federal law as determined by the U.S. Supreme

Court. See 28 U.S.C. § 2254(d)(1); Lockyer v. Andrade, 538 U.S. 63 (2003).

      AFFIRMED.




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