Reyes v. Brown

No. 00-57130 (3-4-05). This is a 3 strikes habeas appeal. The 9th acknowledges that the 8th amendment is a barrier to recidivist statutes, but recognizes that the Supremes, in their Ewing and Andrade cases, left an exception for minor statutory violations that result in 25 to life sentences. The 9th recognized such an exception previously in Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004) and now here. The petitioner here cheated (!) on a DMV driver’s test. He was taken to task by the DMV officer and turned over to the police (DMV tests are taken seriously in California). Because he was a previous felon (armed robbery) and a juvenile delinquent (robbery), he was charged with perjury and when convicted, got 25 to life. The 9th concluded that though perjury was a felony, the cheating was at worst a misdemeanor. The 9th wondered whether the previous conviction fro robbery was really that serious and so remanded to see if there was possibility for relief under Ramirez given that the present conduct was not against a person, and was statutory. Tallman, in dissent, decries the 9th’s stepping in for the state courts, the strained reading of Ewing and Andrade, and the misapplication of Ramirez. Tallman finds the 9th to be reaching for relief and that reach exceeding its jurisdictional and precedential grasp