                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 14 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



ADAM SHELTON, Jr.,                                No. 09-16259

              Petitioner - Appellant,             D.C. No. 2:07-cv-00172-FCD-
                                                  CHS
  v.

MIKE KNOWLES, Warden; ATTORNEY                    MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Franµ C. Damrell, District Judge, Presiding

                       Argued and Submitted August 31, 2010
                             San Francisco, California

Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.

       Appellant-Petitioner Adam Shelton, Jr., appeals the district court's denial of

habeas relief. Shelton was convicted of grand theft and burglary and was

sentenced under California's three-striµes law to thirty-one years to life in prison.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Shelton argues that there was constitutionally insufficient evidence to convict him,

that his right to present a defense was violated when he was not allowed to present

evidence of his recidivism to the jury, and that his sentence constitutes cruel and

unusual punishment. We have jurisdiction under 28 U.S.C. yy 1291 and 2253(c)

and we affirm.

                              I. RELEVANT FACTS

      A few minutes before closing on April 20, 2004, an alarm sounded at a

CompUSA store, indicating that the rear emergency exit door had been opened.

Two employees, Richard Robinson and Kevin Fuller, went out the rear emergency

exit door, which had been propped open. Robinson saw Shelton peeµ above the

dumpster. He recognized Shelton as a customer who he had seen in the store some

minutes earlier but had not seen leave through the front door.

      As Shelton began walµing away, Robinson and Fuller followed him, telling

him to stop so they could talµ to him. Shelton continued to walµ away, and Fuller

called 911 as he and Robinson stayed in pursuit. Shelton scaled a nearby wall, but

police soon caught and detained him. Meanwhile, at CompUSA, an employee had

found three computer monitors behind the dumpster. They were lightweight and

had been stored near the rear emergency exit door.




                                           2
      Two police officers later watched CompUSA's surveillance tape from that

evening. The tape showed a man enter through the front door as the store was

getting ready to close and walµ toward the bacµ of the store. The man never exited

the front door.

                             II. LEGAL STANDARD

      We review de novo a district court's decision to grant or deny a habeas

petition under 28 U.S.C. y 2254. Arnold v. Runnels, 421 F.3d 859, 862 (9th Cir.

2005). For a petition to be granted under the Antiterrorism and Effective Death

Penalty Act of 1996 ('AEDPA'), a petitioner must demonstrate that the state court

decision on the merits was 'contrary to, or involved an unreasonable application

of, clearly established federal law, as determined by the U.S. Supreme Court,' or

'resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the state court proceeding.' 28 U.S.C. y

2254(d). Under AEDPA, an unreasonable application of law is not merely clearly

erroneous; it is 'objectively unreasonable.' Locµyer v. Andrade, 538 U.S. 63,

75-76 (2003).

                   III. SUFFICIENCY OF THE EVIDENCE

      Shelton claims that his due process rights were violated because there was

insufficient evidence from which a reasonable factfinder could have found him


                                          3
guilty beyond a reasonable doubt of the charged crimes. Shelton argues that the

state court unreasonably applied Jacµson v. Virginia, in which the Supreme Court

held that evidence is constitutionally sufficient to support a conviction as long as,

'after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.' 443 U.S. 307, 319 (1979). 'After AEDPA,' we apply 'the

standards of Jacµson with an additional layer of deference.' Juan H. v. Allen, 408

F.3d 1262, 1274 (9th Cir. 2005).

      A.     Grand Theft

      Shelton argues that the jury lacµed sufficient evidence from which to find

that it was he who committed the grand theft. However, two CompUSA

employees--Robinson and Fuller--identified Shelton as the man whom they saw

behind the dumpster and followed as he quicµly walµed away despite their requests

that he return. Robinson also testified that he remembered seeing Shelton in the

store shortly before closing. Shelton's behavior, combined with his proximity to

the monitors behind the dumpster, constitutes sufficient evidence of guilt to

support the jury's verdict.

      B.     Burglary




                                           4
      Shelton argues that there was insufficient evidence from which the jury

could have found that he entered the CompUSA store with the intent to commit

grand or petit theft. The jury was entitled to believe that Shelton was the man on

the videotape who walµed directly toward the bacµ of the store after entering, and

who was found soon afterward crouched behind the dumpster. From this evidence,

a rational factfinder could draw an inference beyond a reasonable doubt that

Shelton entered the store with the requisite intent.

      Shelton's sufficiency of the evidence claim fails.

                        IV. EVIDENCE OF RECIDIVISM

      Shelton also argues that his right to present a defense was violated when the

trial court prevented him from presenting evidence that he fled because he feared

application of the three-striµes law and consequent life imprisonment. A defendant

has a right to present relevant evidence, but that right may be balanced against

'other legitimate interests in the criminal trial process.' Rocµ v. Arµansas, 483

U.S. 44, 55 (1987) (citation and quotation marµs omitted).

      Even though evidence of recidivism was relevant to the question of why

Shelton fled, its exclusion did not infringe upon Shelton's constitutional rights.

California's rule that a jury may not discuss or consider the question of punishment

in its determination of guilt serves a legitimate interest in the criminal trial process:


                                            5
it prevents jurors from 'permit[ting] their consideration of guilt to be deflected by

a dread of seeing the accused suffer the statutory punishment.' People v. Nichols,

62 Cal. Rptr. 2d 433, 434 (Ct. App. 1997) (citation and quotation marµs omitted)

(three striµes case). This rule is not clearly contrary to clearly established Supreme

Court precedent so as to support a habeas claim under the deferential standards of

AEDPA.

                  V. CRUEL AND UNUSUAL PUNISHMENT

      Finally, Shelton claims that his sentence of thirty-one years to life in prison

is grossly disproportionate to his crimes and is therefore cruel and unusual

punishment under the Eighth Amendment. ''The Eighth Amendment does not

require strict proportionality between crime and sentence,'' but rather 'forbids

only extreme sentences that are grossly disproportionate to the crime.' Ewing v.

California, 538 U.S. 11, 23 (2003) (plurality opinion)(internal quotation marµs

omitted) (holding that Ewing's sentence of twenty-five years to life for grand theft

did not constitute cruel and unusual punishment).

      Shelton's criminal history is longer and considerably more serious than

Ewing's. In addition, the shoplifting offense of which Shelton was convicted was

more serious than Ewing's. The fact that Ewing is at least arguably controlling




                                           6
means that the California Court of Appeal's decision cannot be characterized as an

unreasonable application of Supreme Court precedent.

                                VI. CONCLUSION

      The district court's decision to deny Shelton's petition for habeas relief is

hereby AFFIRMED.




                                          7
                                           FILED
Shelton v. Knowles, Case No. 09-16259       DEC 14 2010
Rawlinson, Circuit Judge, concurring:   MOLLY C. DWYER, CLERK
                                         U.S . CO U RT OF AP PE A LS

     I concur in the result.
