                                                                           FILED
                           NOT FOR PUBLICATION                              APR 21 2011

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




                            FOR THE NINTH CIRCUIT



TOMMY LEE FRYMAN,                                No. 10-15371

              Petitioner - Appellant,            D.C. No. 3:05-cv-00156-MHP

  v.
                                                 MEMORANDUM *
W. A. DUNCAN, Warden; JEANNE S.
WOODARD, Director, California
Department of Corrections,

              Respondents - Appellees.



                  Appeal from the United States District Court
                      for the Northern District of California
                 Marilyn H. Patel, Senior District Judge, Presiding

                       Argued and Submitted April 11, 2011
                            San Francisco, California

Before: FERNANDEZ and RAWLINSON, Circuit Judges, and WELLS, Senior
District Judge.**

       Tommy Lee Fryman appeals the district court’s denial of his petition for a

writ of habeas corpus. Fryman maintains that his state court sentence of 25 years

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Lesley Wells, Senior District Judge for the Northern
District of Ohio, sitting by designation.
to life for possession of 1.2 grams of cocaine base amounts to cruel and unusual

punishment, in violation of the Eighth Amendment. He also argues that

prospective application of California’s Proposition 36, a voter initiative mandating

drug treatment instead of incarceration for nonviolent drug possession offenders,

violates the Equal Protection Clause.

      Under the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"), federal habeas relief may only be granted if the state court's decision

"was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States" or "was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). Under

AEDPA, an unreasonable application of law is not merely clearly erroneous; it is

“objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75–76, 123 S.Ct.

1166, 155 L.Ed.2d 144 (2003).

      Under this highly deferential standard of review, neither of Fryman’s claims

entitles him to habeas relief. The state courts’ conclusion that Fryman presented

no viable constitutional claim was neither contrary to, nor an unreasonable

application of, clearly established federal law.

      AFFIRMED.


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