                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 18 2014

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



                            FOR THE NINTH CIRCUIT


RICHARD LAWRENCE STEWART,                        No. 13-15499

              Petitioner - Appellant,            D.C. No. 3:12-cv-01474-RS

  v.
                                                 MEMORANDUM*
RALPH M. DIAZ, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                             Submitted June 13, 2014**
                              San Francisco, California

Before: O’SCANNLAIN, SACK***, and BEA, Circuit Judges.

       Richard Stewart pled guilty to petty theft for stealing two watches, each

worth $29.99. Because of his extensive criminal history, a California court

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
sentenced him to a prison term of twenty-five-years-to-life. Applying Ewing v.

California, 538 U.S. 11 (2003), the California Court of Appeal ruled that Stewart’s

punishment was not “grossly disproportionate” under the Eighth Amendment

because his criminal history included repeated, serious offenses.

      The district court denied Stewart’s petition for a writ of habeas corpus under

the deferential standard established by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d). On appeal, Stewart argues

that the California Court of Appeal unreasonably applied “clearly established

Federal law, as determined by the Supreme Court of the United States.” Id.

      Stewart’s criminal history includes very serious violent crimes: forcible oral

copulation in concert and assault with a deadly weapon. That fact easily

distinguishes this case from cases in which the defendant had committed only

nonviolent crimes. Cf. Solem v. Helm, 463 U.S. 277, 280, 303 (1983) (ruling that a

life sentence without the possibility of parole was “significantly disproportionate”

to “minor criminal conduct” when the defendant had no history of committing

violent crimes); Ramirez v. Castro, 365 F.3d 755, 768 (9th Cir. 2004) (granting

habeas relief when a defendant had committed only nonviolent offenses).

      Stewart argues that he cannot be sentenced so harshly for such a “trivial”

crime regardless of his criminal history. In the context of AEDPA, such argument


                                          2
is foreclosed by Lockyer v. Andrade, in which the Supreme Court held that a state

court did not unreasonably apply clearly established federal law by affirming two

consecutive twenty-five-year sentences for stealing $153.54 worth of videotapes.

538 U.S. 63, 66, 77 (2003).

      Stewart also argues that it was unreasonable for the California Court of

Appeal to consider crimes that he committed as a minor. He relies on Graham v.

Florida, 560 U.S. 48, 82 (2010), which prohibits life-without-parole sentences for

non-homicide crimes committed by minors, and Roper v. Simmons, 543 U.S. 551,

577 (2005), which prohibits executions for crimes committed by minors. It was

reasonable for the California Court of Appeal to conclude that those cases do not

prohibit the consideration of crimes committed as a minor in imposing a sentence

of imprisonment for less than the life of the defendant.

      We cannot conclude that the California Court of Appeal unreasonably

applied clearly established federal law.

      AFFIRMED.




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