78 F. App'x 7

Allen Arthur BARRIES, Petitioner-Appellant, v. LARSON, Warden, Respondent-Appellee.

No. 02-15373.

D.C. No. CV-99-00872-GEB.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2003.

Decided Aug. 6, 2003.

Before REINHARDT, SILER,* and HAWKINS, Circuit Judges.

MEMORANDUM**

Appellant Allen Arthur Barries entered a negotiated plea of no contest to grand theft (Pen.Code, § 487, subd. (a)) and admitted two prior serious felony convictions, both for robbery (§ 211), within the meaning of the three strikes law (§§ 667, subds. (b)—(i), 1170.12). Based on this “third strike,” Barries was sentenced to an indeterminate term of 25 years-to-life. After the California Court of Appeals affirmed the judgment and sentence, the California Supreme Court denied review, and the California courts subsequently denied Barries’ numerous habeas petitions, Barries filed a federal habeas petition with the U.S. District Court for the Eastern District of California. Barries appeals from *8the denial of this petition.1 We affirm the judgment of the district court.

I

Barries argues that the California Appeals Court’s determination that his plea was knowing and voluntary was contrary to U.S. Supreme Court precedent and based on an unreasonable interpretation of the facts.2 After considering all of the relevant circumstances surrounding Barries’ guilty plea, Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), we conclude that he has failed to present sufficient evidence to defeat the “formidable” presumption of verity accorded to plea proceedings when a plea is subsequently challenged in a collateral attack. Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).

II

Second, Barries asserts that he received ineffective assistance of counsel during his change of plea and motion to withdraw his plea. We conclude that the California Supreme Court’s denial of this claim was neither contrary to nor an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) because counsels’ performance did not fall below an objective standard of reasonableness, id. at 688, 104 S.Ct. 2052, nor did unprofessional errors “undermine confidence in the outcome.” Id. at 694,104 S.Ct. 2052.

III

Third, Barries contends that his sentence of 25 years-to-life in state prison for grand theft constitutes cruel and unusual punishment in violation of the Eight Amendment. Following Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003), we conclude that the Appeals Court’s denial of this claim was neither contrary to nor an unreasonable application of the “gross disproportionality” principle.

IV

For the foregoing reasons, the judgment of the district court is AFFIRMED.

Barries v. Larson
78 F. App'x 7

Case Details

Name
Barries v. Larson
Decision Date
Aug 6, 2003
Citations

78 F. App'x 7

Jurisdiction
United States

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