DANA DeSOSA v. FREDERICK BROWN, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
EG/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANA DeSOSA,
Petitioner - Appellant,
v.
FREDERICK BROWN, Warden,
Respondent - Appellee.
No. 07-55043
D.C. No. CV-02-01211-AHS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
California state prisoner Dana DeSosa appeals from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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EG/Research 07-55043 2
DeSosa contends that trial counsel was ineffective in eliciting damaging
testimony from a defense investigator. However, counsel’s strategic decision to
bring out inconsistencies in the prosecution’s case through the defense
investigator’s testimony was not unreasonable. The district court did not err in
concluding that DeSosa failed to establish either deficient performance or resulting
prejudice under the standard announced in Strickland v. Washington, 466 U.S. 668
(1984).
DeSosa further contends that his “Three Strikes” sentence of twenty-five
years to life constitutes cruel and unusual punishment under the Eighth
Amendment. Given the circumstances of the offense and of DeSosa’s prior
convictions, we cannot say that the California Court of Appeal unreasonably
applied federal law when it determined that DeSosa’s sentence was not grossly
disproportionate. 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).
AFFIRMED.

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