Rucker v. Hamlet , 369 F. App'x 786 ( 2010 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                             MAR 03 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    DAVID RUCKER,                                    No. 07-16748
    Petitioner - Appellant,            D.C. No. CV-03-01715-LKK
    v.
    MEMORANDUM *
    JIM HAMLET,
    Respondent - Appellee.
    Appeal from the United States District Court
    for the Eastern District of California
    Lawrence K. Karlton, District Judge, Presiding
    Submitted February 16, 2010 **
    Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
    California state prisoner David Rucker appeals from the district court’s
    denial of his 
    28 U.S.C. § 2254
     habeas petition challenging his “Three-Strikes”
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    AH/Research
    conviction and sentence for driving under the influence. We have jurisdiction
    pursuant to 
    28 U.S.C. § 2253
    , and we affirm.
    Rucker contends that his sentence of twenty-five years to life constitutes
    cruel and unusual punishment under the Eighth Amendment. Given the
    circumstances of the offense and of Rucker’s prior convictions, the state court did
    not unreasonably apply clearly established federal law. See 
    28 U.S.C. § 2254
    (d)(1); Lockyer v. Andrade, 
    538 U.S. 63
    , 72-73 (2003); see also Rios v.
    Garcia, 
    390 F.3d 1082
    , 1086 (9th Cir. 2004) (upholding “Three Strikes” sentence
    of twenty-five years to life for felony petty theft where petitioner struggled with
    loss prevention officer and prior robbery strikes involved threat of violence).
    Rucker also contends that appellate counsel was ineffective for refusing to
    raise the Eighth Amendment issue on direct appeal. The record reflects that
    counsel’s performance was not deficient, and that Rucker cannot demonstrate
    prejudice because the claim lacked merit. See Jones v. Smith, 
    231 F.3d 1227
    , 1239
    n.8 (9th Cir. 2000); Wildman v. Johnson, 
    261 F.3d 832
    , 840 (9th Cir. 2001).
    Rucker last contends that the state trial court violated his due process rights
    when it gave CALJIC 17.41.1, the jury nullification instruction. As Rucker
    concedes, however, this claim is foreclosed by Brewer v. Hall, 
    378 F.3d 952
    , 957
    (9th Cir. 2004) (affirming district court’s denial because there is no clearly
    AH/Research                                                                       07-16748
    established federal law holding that CALJIC 17.41.1 violates an existing
    constitutional right).
    AFFIRMED.
    AH/Research                                                                07-16748
    

Document Info

Docket Number: 07-16748

Citation Numbers: 369 F. App'x 786

Filed Date: 3/3/2010

Precedential Status: Non-Precedential

Modified Date: 1/12/2023