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NOT FOR PUBLICATION MAR 03 2010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
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established federal law holding that CALJIC 17.41.1 violates an existing
constitutional right).
AFFIRMED.
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