Alvin Benson Mack v. Debra Dexter

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALVIN BENSON MACK,
Petitioner - Appellant,
v.
DEBRA DEXTER,
Respondent - Appellee.
No. 07-56392
D.C. No. CV-06-00356-SJO
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted February 11, 2010
Pasadena, California
Before: THOMAS and SILVERMAN, Circuit Judges, and BEISTLINE, ** Chief
District Judge.
Alvin Benson Mack appeals the district court’s denial of his 28 U.S.C. §
2254 habeas petition asserting that his California three strikes sentence of 27 years
to life for violating Cal. Penal Code § 290 violates the Eighth Amendment. We
FILED
FEB 16 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and reverse and remand
with instructions to grant the petition.
We review the district court’s denial of the habeas petition de novo.
Gonzalez v. Duncan, 551 F.3d 875, 879 (9th Cir. 2008). Since the state court
denied Mack’s claim without explanation, we independently review Mack’s claim
to determine if the California Supreme Court unreasonably applied clearly
established law. Davis v. Woodford, 446 F.3d 957, 960 (9th Cir. 2006).
The record in this case establishes that the jury could have found – and
likely did find – Mack guilty of merely failing to update his registration on his
birthday, which the California courts regard as a mere technical violation of § 290.
People v. Carmony, 26 Cal. Rptr. 3d 365 (Ct. App. 2005); People v. Cluff, 105 Cal.
Rptr. 2d 80, 86-88 (Ct. App. 2001). A sentence of 28 years to life for a technical
violation of § 290 runs afoul of the Eighth Amendment. See Gonzalez, 551 F.3d at
877.
REVERSED AND REMANDED.

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