                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 16 2010

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ALVIN BENSON MACK,                               No. 07-56392

             Petitioner - Appellant,             D.C. No. CV-06-00356-SJO

  v.
                                                 MEMORANDUM *
DEBRA DEXTER,

             Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                    S. James Otero, District Judge, Presiding

                     Argued and Submitted February 11, 2010
                              Pasadena, California

Before: THOMAS and SILVERMAN, Circuit Judges, and BEISTLINE, ** Chief
District Judge.

       Alvin Benson Mack appeals the district court’s denial of his 28 U.S.C. §

2254 habeas petition asserting that his California three strikes sentence of 27 years

to life for violating Cal. Penal Code § 290 violates the Eighth Amendment. We

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and reverse and remand

with instructions to grant the petition.

       We review the district court’s denial of the habeas petition de novo.

Gonzalez v. Duncan, 551 F.3d 875, 879 (9th Cir. 2008). Since the state court

denied Mack’s claim without explanation, we independently review Mack’s claim

to determine if the California Supreme Court unreasonably applied clearly

established law. Davis v. Woodford, 446 F.3d 957, 960 (9th Cir. 2006).

       The record in this case establishes that the jury could have found – and

likely did find – Mack guilty of merely failing to update his registration on his

birthday, which the California courts regard as a mere technical violation of § 290.

People v. Carmony, 26 Cal. Rptr. 3d 365 (Ct. App. 2005); People v. Cluff, 105 Cal.

Rptr. 2d 80, 86-88 (Ct. App. 2001). A sentence of 28 years to life for a technical

violation of § 290 runs afoul of the Eighth Amendment. See Gonzalez, 551 F.3d at

877.

       REVERSED AND REMANDED.




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