                                                                           FILED
                             NOT FOR PUBLICATION                            SEP 01 2011

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



DELANO TOLDEN,                                   No. 10-15837

                Petitioner - Appellant,          D.C. No. 4:08-cv-03782-CW

  v.
                                                 MEMORANDUM *
JAMES E. TILTON, Director, Department
of Corrections,

                Respondent - Appellee.



                     Appeal from the United States District Court
                        for the Northern District of California
                     Claudia A. Wilken, District Judge, Presiding

                         Argued and Submitted April 14, 2011
                              San Francisco, California

Before: THOMAS and RAWLINSON, Circuit Judges, and CARNEY, District
Judge.**




            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **   The Honorable Cormac J. Carney, District Judge for the U.S. District
Court for Central California, Santa Ana, sitting by designation.
      Petitioner-Appellant Delano Tolden challenges the district court’s denial of

his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Tolden

asserts that his sentence of twenty-five years to life constitutes cruel and unusual

punishment due to his alleged mental retardation and the passive nature of his

offense of failing to register as a sex offender. He also contends that the trial

court’s jury instructions were constitutionally defective.

      Federal law clearly establishes that mentally retarded persons may not be

executed. See Atkins v. Virginia, 536 U.S. 304, 321 (2002). However, there is no

Supreme Court case supporting Tolden’s premise that a sentence of twenty-five

years to life is cruel and unusual punishment for a mentally retarded person. With

no Supreme Court authority to the contrary, the California Court of Appeal’s

affirmance of the sentence was not an unreasonable application of Supreme Court

law, and habeas relief is not available. See Knowles v. Mirzayance, 129 S. Ct.

1411, 1419 (2009). In addition, there is sufficient evidence in the record to support

the state court’s determination that Tolden’s level of mental functioning did not so

reduce his criminal culpability as to render his sentence grossly disproportionate or

unconscionable.

      Tolden’s alternative argument that his sentence is cruel and unusual due to

the passive nature of the registration offense is meritless. Supreme Court


                                           2
precedent has established that long prison terms resulting from non-violent

convictions and three-strike enhancements do not violate the Eighth Amendment.

See Lockyer v. Andrade, 538 U.S. 63, 66-68, 73-74 (2003) (affirming a sentence of

consecutive terms of twenty-five years to life for a “third strike” conviction where

the defendant stole nine videotapes worth $153.54); see also Ewing v. California,

538 U.S. 11, 17-18, 20, 30 (2003) (affirming a three strikes sentence of twenty-five

years to life for theft of three golf clubs, priced at $399 each). Tolden’s reliance on

People v. Carmony, 127 Cal. App. 4th 1066 (2005) is inapposite. We consult only

Supreme Court cases to determine if habeas relief is available. See Clark v.

Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled on other grounds by Lockyer v.

Andrade, 538 U.S. 63 (2003) (“[T]he only definitive source of clearly established

federal law under AEDPA is the holdings (as opposed to the dicta) of the Supreme

Court as of the time of the state court decision. . . .”) (citation and emphasis

omitted).

      Tolden also contends that the trial court’s instruction regarding the term

“wilfully” under CALJIC 1.20, and its definition of “general criminal intent” under

CALJIC 3.30 allowed the jury to convict him without a showing of “actual

knowledge,” as required by California Penal Code § 290. This argument fails

because the trial court instructed the jury on all the elements of § 290, including the


                                           3
required mental state of actual knowledge. Viewing the instructions as a whole

and the trial in its entirety, no “substantial and injurious effect or influence on the

verdict” occurred. Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010)

(citation omitted).1

      Tolden’s final argument asserts that the trial court gave the jury an

incomplete instruction regarding the actual knowledge requirement by neglecting

to instruct that Tolden must have had actual knowledge that he was required to

register within 14 days of moving to a new city. However, the jury was instructed

that a conviction under § 290 required proof that Tolden had “actual knowledge of

his duty to register” and that he “wilfully failed to register within 14 working

days.” Viewing the jury charges as a whole, the instructions encompassed

knowledge of the 14-day registration period. See Mendez v. Knowles, 556 F.3d

757, 768 (9th Cir. 2009).

      AFFIRMED.




      1
        Although Supreme Court holdings are the only definitive source of clearly
established federal law for purposes of the AEDPA, we may rely on circuit
precedent as persuasive authority for determining whether a state court decision
unreasonably applies Supreme Court law. See Clark, 331 F.3d at 1069.

                                            4
