                               NOT FOR PUBLICATION                                  FILED
                       UNITED STATES COURT OF APPEALS                                MAR 11 2019
                                                                                MOLLY C. DWYER, CLERK
                                                                                  U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT

EARL LEE DIXIE,                                        No.     11-57185

                  Petitioner-Appellant,                D.C. No.
                                                       5:10-cv-01026-R-PLA
  v.

K. HARRINGTON,                                         MEMORANDUM*

                  Respondent-Appellee.

                      Appeal from the United States District Court
                         for the Central District of California
                       Manuel L. Real, District Judge, Presiding

                        Argued and submitted February 14, 2019
                                 Pasadena, California

Before: FISHER and CALLAHAN, Circuit Judges, and KORMAN,** District
Judge.

       After learning of his niece’s death, petitioner Earl Dixie abused several illicit

substances, including PCP, alcohol, and marijuana. Despite ingesting these

substances, Dixie chose to drive a motor vehicle. When police officers observed

expired vehicle registration tags and approached his car, a high-speed chase


       *
              This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
       **
               The Honorable Edward R. Korman, United States District Judge for the Eastern
District of New York, sitting by designation.

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ensued. Reaching 100 miles per hour, Dixie crashed through fences, struck palm

trees, ran red lights, drove on the wrong side of the road, and almost hit bicyclists

in the bicycle lane before coming to a halt. Dixie was convicted at trial of felony

evasion of police and several misdemeanors. Because of previous convictions, he

was sentenced under California’s “three strikes” law to 25 years to life. After

unsuccessfully challenging his conviction in California, he filed a petition for a

writ of habeas corpus in the district court, from the denial of which he now

appeals.

      1. Dixie argues that his trial counsel’s failure to investigate and present a

defense based on schizophrenia prejudiced his defense because evidence of his

schizophrenia would have strengthened his argument that intoxication prevented

him from forming specific intent to evade police and would have created a

reasonable probability of an acquittal. See Strickland v. Washington, 466 U.S. 668,

694 (1984). We are not persuaded.

      Dixie concedes that a mental health expert’s explanation to the jury that

people with schizophrenia are “prone to delusions and blackouts, particularly in

combination with the use of alcohol and illegal drugs,” would not establish a lack

of specific intent to evade. Regardless, the evidence at trial of specific intent to

evade was substantial and compelling. It showed that, after taking PCP and other

illicit substances, Dixie was able to drive to a specific location to look for his


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wife’s sister, communicate with two women and give one of them a hit of his

“sherm” (a PCP-dipped cigarette), ditch the “sherm” and bottle of PCP just as the

police arrived, flee the scene in his car as the police approached, commence a high-

speed chase only once the police had exited their vehicle and were on foot, turn off

his headlights to make him less visible during the chase, identify himself and his

medical issues to emergency medical personnel immediately after the chase, and

more.

        This series of deliberate actions is entirely consistent with an individual

acting with specific intent to evade. Given the strong evidence of specific intent to

evade, “there is no reasonable possibility of a different outcome.” Hernandez v.

Chappell, 913 F.3d 871, 883 (9th Cir. 2019). Under these circumstances, the state

court’s rejection of Dixie’s argument was not an unreasonable application of

clearly established federal law. See Harrington v. Richter, 562 U.S. 86, 105 (2011)

(“The standards created by Strickland and § 2254(d) are both ‘highly deferential’ .

. ., and when the two apply in tandem, review is ‘doubly’ so . . . .”) (citations

omitted).

        2. The California Court of Appeal’s ruling that Dixie’s sentence of 25 years

to life was not “grossly disproportionate” was not an unreasonable application of

clearly established federal law. In determining whether a sentence is “grossly

disproportionate,” factors to be weighed are (i) the seriousness of the current


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offense and harshness of the penalty, (ii) other criminals’ sentences in the same

jurisdiction, and (iii) the same crime’s sentences in other jurisdictions. Solem v.

Helm, 463 U.S. 277, 290-91 (1983). While these factors continue to guide the

analysis of whether a sentence is “grossly disproportionate,” Harmelin v.

Michigan, 501 U.S. 957 (1991), has since made it clear that courts need not

perform intra-jurisdictional and inter-jurisdictional analyses absent an inference of

gross disproportionality. See Graham v. Florida, 560 U.S. 48, 60 (2010) (quoting

Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring)). Dixie’s triggering offense

of evading the police consisted of dangerous felony conduct that endangered

human life. His criminal history is both violent and extensive. Thus, there is no

threshold inference of gross disproportionality, making it unnecessary to compare

Dixie’s sentence to compare comparable sentences imposed for comparable crimes

in the same or other jurisdictions. See id.; see also Ewing v. California, 538 U.S.

11, 28-29 (2003) (“In weighing the gravity of [the defendant’s] offense, we must

place on the scales not only his current felony, but also his long history of felony

recidivism.”). Under these circumstances, the California Court of Appeal’s

rejection of his Eighth Amendment challenge was not unreasonable. See Ewing,

538 U.S. at 28-29. Indeed, the Supreme Court has held that “the only relevant

clearly established law amenable to the ‘contrary to’ or ‘unreasonable application

of’ framework is the gross disproportionality principle, the precise contours of


                                          4
which are unclear, applicable only in the ‘exceedingly rare’ and ‘extreme’ case.”

Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Harmelin, 501 U.S. at 1001

(Kennedy, J., concurring)). This is not such a case.

AFFIRMED.




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