                           NOT FOR PUBLICATION                                FILED
                   UNITED STATES COURT OF APPEALS                             DEC 28 2016

                                                                        MOLLY C. DWYER, CLERK
                           FOR THE NINTH CIRCUIT                            U.S. COURT OF APPEALS




LEROY DALE HOLSEY,                               No.    15-17091

              Petitioner-Appellant,              D.C. No.
                                                 2:13-cv-00962-KJM-GGH
 v.

WILLIAM KNIPP, Warden,                           MEMORANDUM*

              Respondent-Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                     Argued and Submitted December 13, 2016
                             San Francisco, California

Before:      KOZINSKI, BYBEE and N.R. SMITH, Circuit Judges.

      We may grant federal habeas relief to a state prisoner if the state’s

adjudication “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The Supreme Court



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                                 page 2
has extended the Eighth Amendment’s prohibition on cruel and unusual

punishment to non-capital sentences that are “grossly disproportionate” to the

crime. Ewing v. California, 538 U.S. 11, 23 (2003). But successful

proportionality challenges are “exceedingly rare,” Rummel v. Estelle, 445 U.S.

263, 272 (1980), and we cannot grant habeas relief if “fairminded jurists could

disagree on the correctness” of the state court’s decision, Harrington v. Richter,

562 U.S. 86, 88 (2011) (internal quotation marks and citation omitted).

      Our circuit has given federal habeas relief to a previous California prisoner

convicted of the same offense and sentenced to the same term that Holsey now

challenges. See Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008). But the

California Court of Appeal distinguished Holsey’s case from Gonzalez based on

Holsey’s greater propensity to recidivate, as did the district court. Because

fairminded jurists could conclude that Holsey’s pattern of recidivism rendered his

sentence constitutional, federal habeas relief is unavailable.


      AFFIRMED.
