                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 04 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


CHARLES W. WINDHAM,                              No. 12-56397

              Petitioner - Appellant,            D.C. No. 5:09-cv-02340-RSWL-
                                                 JEM
  v.

MATTHEW L. CATE, Secretary of                    MEMORANDUM*
CDCR; JERRY BROWN, Attorney
General of California,

              Respondents - Appellees.


                  Appeal from the United States District Court
                      for the Central District of California
                Ronald S.W. Lew, Senior District Judge, Presiding

                    Argued and Submitted November 21, 2014
                              Pasadena, California

Before: W. FLETCHER and BYBEE, Circuit Judges, and EZRA, District Judge.**

       Charles Windham appeals the district court’s judgment denying his petition

for a writ of habeas corpus. Windham was convicted in 2002 of three counts of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
violating California’s sex-offender registration laws: one count of failing to notify

law enforcement of a change in his address (Cal. Penal Code § 290(f)(1) (2000))

and two counts of failing to update his sex offender registration annually (Cal.

Penal Code § 290(a)(1) (2000)). Pursuant to California’s Three Strikes law, he

received three sentences of 25 years to life in prison—one on each count—to run

consecutively.

       After the district court dismissed Windham’s habeas corpus petition, we

granted a certificate of appealability on the following issue: “whether [Windham’s]

sentence of 75 years to life constitutes cruel, unusual and disproportionate

punishment in violation of the Eighth Amendment, including whether [trial]

counsel was ineffective for failing to raise this issue at sentencing.” Because no

state court has passed upon the merits of these questions, we review both de novo.

Pirtle v. Morgan, 313 F.3d 1160, 1167–68 (9th Cir. 2002). We affirm the decision

of the district court.

       We first conclude that Windham’s sentence does not violate the Eighth

Amendment. Although a sentence of 75 years to life is indisputably harsh, we

must weigh the harshness of this punishment against the gravity of Windham’s

offenses and, if that comparison does not “lead[] to an inference of gross

disproportionality,” we must reject Windham’s Eighth Amendment claim.


                                          2
Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., concurring in part

and concurring in the judgment). A comparison between the gravity of Windham’s

present and past offenses and the harshness of his sentence raises no such

inference.

      Our case law “emphasize[s] a consistent principle found in the sex offender

registration context—whether the crime is a de minimis crime for which a life

sentence is disproportionate is related to how closely the violation is tied to helping

achieve the purposes of the sex offender registration statute.” Crosby v. Schwartz,

678 F.3d 784, 794 (9th Cir. 2012). In Crosby, we upheld the Three Strikes

sentence (26 years to life) of a California sex offender who failed to notify law

enforcement when he changed his address because that failure was “directly

related” to the state’s interest in keeping track of sex offenders and thus a serious

offense that posed a threat to the public. Id. at 793–94. By contrast, in Gonzalez v.

Duncan, we held that the Three Strikes sentence (25 years to life) of a defendant

who failed to annually update his California sex-offender registration raised an

inference of gross disproportionality because the defendant’s crime was “‘an

entirely passive, harmless, and technical violation’” that caused the public no

actual harm. 551 F.3d 875, 889 (9th Cir. 2008) (quoting People v. Carmony, 26

Cal. Rptr. 3d 365, 372 (Ct. App. 2005)).


                                           3
      Windham’s case is far more akin to Crosby than to Gonzalez. Windham left

California for a year and a half, in deliberate violation of his parole and without

notifying law enforcement. When he returned to California, he lived out of his car

and altered his appearance in order to avoid contact with the police. Windham, in

other words, did not merely commit “passive” violations of the registration laws;

rather, he actively and intentionally evaded police surveillance and, in so doing,

posed a threat to the public. See Crosby, 678 F.3d at 794; In re Coley, 283 P.3d

1252, 1272 (Cal. 2012) (holding that a failure to update sex-offender registration

should not be considered a minor or technical offense when committed “as part of

a more general course of conduct that demonstrates a deliberate general

unwillingness to comply with the sex offender registration requirements”). His

offenses of conviction were therefore serious offenses that warranted substantial

punishment.

      We must also take Windham’s criminal history into account in assessing the

gravity of his offense. Ewing v. California, 538 U.S. 11, 29 (2003) (plurality

opinion). Although most of Windham’s criminal record derives from a single

incident, that incident—which led to his conviction in 1985 of two counts of

forcible rape, two counts of kidnapping, and one count of assault with a deadly

weapon—was both violent and disturbing. After considering Windham’s 1985


                                          4
convictions together with his present offenses, we conclude that Windham’s “is not

the rare case in which a threshold comparison of the crime committed and the

sentence imposed leads to an inference of gross disproportionality.” Id. at 30

(internal quotation marks omitted).

      Because Windham’s Eighth Amendment claim fails on the merits, we reject

his claim of ineffective assistance of counsel on the grounds that Windham

suffered no prejudice from his attorney’s failure to make an Eighth Amendment

argument at sentencing. See Strickland v. Washington, 466 U.S. 668, 694 (1984).

      AFFIRMED.




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